New York borrowing statute, N.Y. Civ. Prac. L. & R. § 202 (McKinney 1990), and its predecessor statute, N.Y. Civ. Prac. A. § 13, which was applicable at the time the alleged events took place, provide that where, as here, a cause of action has accrued outside New York, the applicable statute of limitations is that of New York or of the state where the cause of action accrued, whichever is shorter. Therefore, if Overall's action would be untimely under New York law, as discussed below, it must be dismissed regardless of whether it would be barred under the law of Texas, Missouri or Mississippi.
In New York, claims for the intentional torts of assault and battery, false imprisonment, and intentional infliction of emotional distress
are governed by the one-year statute of limitations set forth in N.Y. Civ. Prac. L. & R. § 215(3) (McKinney 1990). Koster v. Chase Manhattan Bank, 609 F. Supp. 1191, 1198 (S.D.N.Y. 1985); Hansen v. Petrone, 124 A.D.2d 782, 508 N.Y.S.2d 500 (App. Div. 1986); 2 Carmody-Wait 2d § 13.74 (1965). Although New York's one-year statute of limitations may be tolled during a complainant's infancy, N.Y. Civ. Prac. L. & R. § 208 (McKinney 1990), Overall's right to a tolling based on infancy expired in 1960, when she reached 18 years of age. See Thorn v. New York City Dept. of Social Servs., 523 F. Supp. 1193 (S.D.N.Y. 1981); Bassile v. Covenant House, 152 Misc. 2d 88, 575 N.Y.S.2d 233 (Sup. Ct. 1991).
Overall contends, however, that the statute of limitations on her claims against Klotz was tolled pursuant to New York law until June 1991 because until that time she was under the continuous influence of Klotz's duress. Overall Aff. P 1. Under New York law, "when duress is part of the cause of action," the statute of limitations is tolled until the duress has ended "because the offensive conduct is regarded as a continuous wrong." Baratta v. Kozlowski, 94 A.D.2d 454, 464 N.Y.S.2d 803, 806 (App. Div. 1983) (citing Kamonitsky v. Corcoran, 97 Misc. 384, 161 N.Y.S. 756, 759 (App. Term 1916), rev'd on other grounds, 177 A.D. 605, 164 N.Y.S. 297 (App. Div. 1917)); see also Pacchiana v. Pacchiana, 94 A.D.2d 721, 462 N.Y.S.2d 256, 257 (App. Div. 1983). However, continuing duress may toll a statute of limitations only until the asserted coercion ceases. See Pacchiana, supra, 462 N.Y.S.2d at 257; see also Greene v. Greene, 56 N.Y.2d 86, 451 N.Y.S.2d 46, 436 N.E.2d 496 (1982); see also Cullen v. Margiotta, 811 F.2d 698, 723 (2d Cir.), cert. denied, 483 U.S. 1021 (1987).
Even assuming, arguendo, that duress is "an element of the cause[s] of action asserted," Cullen, supra, 811 F.2d at 722,
Overall has not shown that the alleged duress continued up to and during a period of time not barred by the statute of limitations. Kamonitsky, supra, 161 N.Y.S.2d 756. Although she alleges that the defendant threatened her on numerous occasions from 1947 through 1949, over forty years prior to the commencement of this action, according to her own testimony, the last threat was made prior to the time she left for the convent school in Chatawa, Mississippi, in or about September of 1949. Overall Dep. 33-36. She has not lived with Klotz since that time. Overall Aff. P 22; Overall Dep. at 46. Nor has she alleged any conscious fear of Klotz in her adult meetings with him, during which she voluntarily conversed and danced with him, Overall Dep. at 81-83, 88-91, and even repelled his sexual advances. Overall Dep. at 84. It follows that no rational trier of fact could conclude that Overall was still under the influence of Klotz's duress within one year of the date on which she filed her Complaint on March 27, 1991. Schmidt v. Bishop, 779 F. Supp. 321, 330-31 (S.D.N.Y. 1991).
Moreover, since Overall claims to have had no memory of her father's alleged abuse until May 1990, there can be no merit to her argument that her father's duress caused her to refrain from suing before that date. Harrison v. Grobe, 790 F. Supp. 443, 454 (S.D.N.Y. 1992). By definition, it is essential to tolling because of duress that the victim be aware of the alleged duress so that it can and does play a role in a decision not to commence the action. As the court stated in Candid Prods., Inc. v. SFM Media Serv. Corp., 51 A.D.2d 943, 381 N.Y.S.2d 280, 282 (Sup. Ct. 1976):
"Duress is actual or threatened violence or restraint contrary to law. It has been said that duress is a species of fraud in which compulsion in some form takes the place of deception in accomplishing an injury. Differently expressed, the injury is accomplished in fraud without the knowledge of the victim, while in duress he is fully conscious of the illegal element."
See also In re Hellenic Lines, Ltd. v. Louis Dreyfus Corp., 372 F.2d 753, 757 (2d Cir. 1967) ("However duress may be defined, a key element today is the state of mind of the person threatened."); United States v. Esposito, 654 F. Supp. 664, 669 (S.D.N.Y.), aff'd, 834 F.2d 272 (2d Cir. 1987). Indeed, recognizing that New York's tolling provisions cannot be applied to the type of unconscious fear of bringing suit associated with post-traumatic stress disorders, the New York courts have
called upon the legislature to rectify the intolerably unfair situation under the current law of victims of sexual abuse in . . . cases where the plaintiff can establish a repression of the acts forced upon her prior to her attaining the age of majority and where such repression caused plaintiff to commence a civil action only subsequent to the expiration of the statute of limitations.